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Haley v. Arnold

United States District Court, W.D. Kentucky, Louisville Division

March 24, 2018

JOSHUA HALEY, Plaintiff,
v.
KEITH ARNOLD et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          David J. Hale, United States District Judge.

         This matter is before the Court upon a motion for summary judgment by Defendants for failure to exhaust available administrative remedies (DN 13). Fully briefed, this matter is ripe for consideration. For the following reasons, the Court will deny this motion.

         I. PROCEDURAL HISTORY

         Pro se Plaintiff Joshua Haley initiated this prisoner civil rights action on July 14, 2017.[1]In his complaint, Plaintiff alleges that he is a “30 year old gender nonconforming male that has an extremely feminine appearance housed within the male prison of Kentucky State Reformatory [KSR] . . .” Plaintiff further alleges that he has been classified as “at risk for sexual assault” due to a prior sexual assault within the prison setting. Plaintiff states that on May 23, 2016, an inmate named James Mallory, who was a “sexual predator, ” tried to have Plaintiff transferred to his cell. Plaintiff then alleges that between May 23, 2016, and May 27, 2016, he was threatened and assaulted by this inmate and that Defendants Perry, Whittaker, Campbell, Shirley, Mitchell, Shulte, and Arnold knew that this inmate posed a danger to Plaintiff but failed to protect him. Plaintiff alleges that these Defendants' deliberate indifference to his safety culminated in a brutal attack on May 27, 2016, when inmate Mallory assaulted Plaintiff with boiling water, beat him unconscious, and broke his jaw bone, while screaming, “If I can't have you, no one will.” Plaintiff states that this inmate did not stop attacking Plaintiff until the inmate thought Plaintiff was dead. Plaintiff alleges that Defendants Arnold and Jones witnessed this attack and made no attempt to stop the assault. Plaintiff also alleges that “the prison failed to train” Defendants Arnold and Jones that the body fluid from an HIV positive inmate “would or could not harm them once exposed to the air.”

         On October 2, 2017, the Court conducted an initial review of Plaintiff's complaint pursuant to 28 U.S.C. § 1915A (DN 7). Based upon the allegations contained in the complaint, the Court dismissed Plaintiff's official-capacity claims and his claims that certain Defendants violated his constitutional rights by failing to follow various prison regulations regarding the investigation of grievances. The Court, however, allowed Plaintiff's Eighth Amendment failure-to-protect claims to proceed against Defendants Perry, Whittaker, Campbell, Shirley, Mitchell, Shulte, Arnold, and Jones, in their individual capacities, and a state-law negligent training claim to proceed against Defendant Warden Smith in his individual capacity.

         On November 6, 2017, Defendants filed a motion to dismiss this action based upon Plaintiff's failure to exhaust available administrative remedies. On November 20, 2017, the Court entered a Memorandum Opinion and Order stating that it was construing Defendants' motion as one for summary judgment and providing Plaintiff 30 days to file a response to Defendants' motion (DN 14). Following the entry of that Memorandum Opinion and Order, Plaintiff filed a response to the motion now before the Court (DN 15). Defendants then filed a reply (DN 28), and Plaintiff filed a sur-reply (DN 31).

         II. LEGAL STANDARD

         Before the Court may grant a motion for summary judgment, it must find that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving party bears the initial burden of specifying the basis for its motion and identifying that portion of the record that demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the moving party satisfies this burden, the non-moving party thereafter must produce specific facts demonstrating a genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).

         The evidence of the non-moving party is to be believed, Anderson, 477 U.S. at 255, and all reasonable inferences that may be drawn from the facts placed before the Court must be drawn in favor of the opposing party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Nevertheless, the non-moving party must do more than merely show that there is some “metaphysical doubt as to the material facts.” Id. at 586. Instead, the Federal Rules of Civil Procedure require the non-moving party to present specific facts showing that a genuine factual issue exists by “citing to particular parts of materials in the record” or by “showing that the materials cited do not establish the absence . . . of a genuine dispute[.]” Fed.R.Civ.P. 56(c)(1). “The mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party].” Anderson, 477 U.S. at 252. It is against this standard that the Court reviews the facts presented.

         III. UNDISPUTED FACTS

         Defendants attach the Kentucky Department of Corrections (KDOC) Inmate Grievance Procedure, CPP 14.6, to their motion. The portion of the procedure referenced by Defendants in their brief is the section setting forth the four steps of KDOC's inmate grievance process: Step 1 - Filing the Grievance and Informal Resolution, Step 2 - Grievance Committee Hearing, Step 3 - Appeal to the Warden, Step 4 - Appeal to the Commissioner.

         The record indicates that Plaintiff filed three grievances related to his alleged attack by inmate Mallory on May 27, 2016, and various prison officials' failure to protect him from inmate Mallory both before and/or during the attack. Plaintiff filed his first grievance on June 3, 2016. On this grievance form, Plaintiff indicated that he was not satisfied with the informal resolution of the grievance and that he would like to request a hearing before the Grievance Committee. The second page of the grievance form shows that Plaintiff was scheduled to appear before the Grievance Committee on August 18, 2016; however, the form states “failure to appear.” Defendants attach the affidavit of Everett Thomas, the current Grievance Coordinator at KSR, to their motion.[2] In his affidavit, Thomas avers that Plaintiff did not appeal this grievance any further.

         Plaintiff filed his second grievance related to the attack on April 12, 2017. On May 2, 2017, Plaintiff received a “Grievance Rejection Notification” regarding this grievance from the KDOC Grievance Coordinator which indicated his grievance had been deemed non-grievable.

         Plaintiff filed his third grievance related to the attack on July 10, 2017. Plaintiff received a “Decision and Review” from the KDOC Commissioner ...


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